Punishment of Hudud Offenses –Utility of Applying it in Malaysia.
PUNISHMENT OF HUDUD
OFFENSES –UTILITY OF
APPLYING IT IN MALAYSIA.
Md. Zubair Kasem Khan.
Matric No.: G1110969.
Master of Comparative Laws (MCL)
International Islamic University Malaysia.
TABLE OF CONTENTS.
1.1 Definition of the Offence of Hudud.
1.2 Classification of Hudud Offences According to Islam.
1.3 General Explanation of Hudud offences.
2.0 Purpose of declaring certain prohibited activities as Grievous
Offence in Islam:
2.1 Reasons Of Declaring Seven Activities As Grievous Offence.
2.2 The Aim/Goals Of Executing Such Punishments In Islam.
3.0 Laws or Enactments for Punishment of Hudud in
Malaysia( Kelamtan & Terengganu):
3.1 Kelantan Syariah Criminal Code (Ii) Enactment 1999 (Hudud Law).
3.2 Syariah Criminal Offences (Hudud and Qisas) Terengganu, 2002.
3.3 The Clogs/Encumbrances In Carrying Out Hudud Law In Malaysia.
4.0 Recommendation and Conclusion :
1.1 DEFINITION OF THE OFFENCE
Hudud( )حدود is an Arabic word derive from the singular word Hadd
()حد which means boundary, limit, barrier, obstacle or restriction. It
also literally use to mean in Islamic Literature for the bounds of
acceptable behavior and the punishments for serious crimes.
According to the Prof. Mohammad Hashim Kamali-
“ Hadd(Hadd-Allah) has been reserved to signify a fixed and
unchangeable punishment that is laid down in Quran and Sunnah of
the Prophet Muhammad(p.b.u.h).”
Hadd-Allah is a familiar expression which occurs 14 times in the Holy-
Quran signifying “limits” whether moral or legal, of acceptable
behavior from that which is unacceptable, in the sense for example of
separating the HALAL and HARAM from one another.
1.2 CLASSIFICATION OF HUDUD
OFFENCES ACCORDING TO ISLAM.
There are 7 classification of hudud:-
1) Theft ()السرقة
2) Robbery (الحرابة )
3) Illicit Sexual Intercourse ()الزنى
4) False Accusation of Zina ()القذف
5) Drinking Intoxicating Liquor (الخمر شرب )
6) Apostasy ()الردة
7) Rebellion ( البغاة )
1.3 THEFT (.)السرقة
The word “Theft” means to take away the property of another
person secretly/surreptitiously without the knowledge and
consent of that person. The most important thing for committing
Theft is to take away the property of someone
In Sura-Ma’idah, Allah(Sub.Ta’ala) Says-
…[As for] the thief, the male and the female, amputate their
hands in recompense for what they committed as a deterrent
[punishment] from Allah. And Allah is Exalted in Might and
To accuse a person to be liable for stealing, one must be-
Adult of sound understanding
Intention must be unlawful to take away the movable
The property stolen must by under the full
possession/custody of the thief.
The prescribe value of the stolen property must by
prescribed value(10 Dirhams).
The punishment of Theft liable to Hadd is amputation of the
right hand of the convict from the joint of the wrist(most of
The punishment of Theft liable to Hadd is amputation of the
tips of the right hand of the convict and not his palm(Shi’ah
1.3 ROBBERY (الحرابة )
Literally means to quarrel, to fight with the intention to take away
property from a person openly by terrorising either threatening to use
of force or using force.
Harabah can be committed either by individual or a group of people
in the form of Robbery, Bloodshed, High Treason, Dacoity etc.
Allah says in the holy Quran, Sura Ma’idah as-
“…Indeed, the penalty for those who wage war against Allah and His
Messenger and strive upon earth [to cause] corruption is none but that
they be killed or crucified or that their hands and feet be cut off from
opposite sides or that they be exiled from the land. That is for them a
disgrace in this world; and for them in the Hereafter is a great
The Difference between Theft and Harabah is- Theft means to take
away others property surreptitiously whereas Harabah means taking
away others property deliberately by using force publicly.
According to the Sura Ma’idah (Ayat:33-334), the following four
kinds of punishment can be sanctioned for Harabah which are-
Amputation of Hand and Food from opposite sides &
1.3 ILLICIT SEXUAL
INTERCOURSE ( الزنى )
Legally the term “Zina” means “Having willfully sexual intercourse between a
man and a woman, without having validly married to each other. (Abdurrahman I
Prof. Dr. Anwarullah defines “Zina” as willful sexual intercourse between a man
and a woman who are not, and do not suspect to be, validly married to each other.
Zina has been prohibited in Islam. Holy-Quran says,
“…And do not come near to adultery: For it is a shameful (deed) and an evil,
opening the road (to other evils).” (17:32)
Besides, Islam is very strict in prohibiting Zina because it leads to
confusion of lineage, child abuse, the breaking-up families, bitterness in
relationship, the spread of venereal disease and a general laxity in morals.
Allah says in Sura Al- Nur(Ayat:2) that-
“…The woman and the man guilty of adultery or fornication, flog each
of them with hundred stripes. Let not pity withhold you in their case, in
a punishment prescribed by God, if you believe in God and the Last
Day: And let a party of the believers witness their punishment…”. [24:2]
Thus the hadd punishment of zina for an unmarried person is hundred
stripes according to Imam Abu Hanifah.
According to Imam Malik, Imam Shafei and Imam Ahmad the
punishment of zina for an unmarried person is whipping hundred stripes
and banishment for one year.
Likewise, the Punishment of “Zina” for a married person is
concerned, the Holy prophet has prescribed it as “Rajm” i.e. stoning
to death. The Holy Propher himself has executed the punishment of
“Rajm” to three married Muslims one man and two women.
1.3 FALSE ACCUSATION OF ZINA
Literally means to accuse, to defame and in terms it means to
accuse of Zina an adult and sane Muslim who has never
committed Zina or to refuse the legitimacy of a child.
In other words, when a person accuses another person of Zina
and couldn’t produce 4 witnesses in support of his allegation,
he is considered to have committed the offence of Qazf liable
The Qur’an states:
“….And those who accuse chaste women and then do not
produce four witnesses - lash them with eighty lashes and do
not accept from them testimony ever after. And those are the
defiantly disobedient….” [Surah An-Nur, 24:4,5]
The punishment of a person who commits Qazf liable to Hadd
is eighty(80) stripes and forty(40) for the slaves.
The consequence of Qadf is that, the evidence of the accuse
will not be accepted after being punished for Qadf according
to Imam Abu Hanifah.
However, Imam Malik, Imam Shafii and Imam Ahmad
contradict that, his evidence will be accepted if he later on
repents and mends his conduct.
1.3 DRINKING INTOXICATING LIQUOR
(الخمر شرب )
The Arabic word “Khamr” literally means- “something that veiled or
covered or concealed” a thing. Drinking wine is called Khamr
because it veils the intellect and obscures the moral sensibilities of a
Regarding Khamr, Allah Subhana Ta’ala says in the Holy Quran –
“…O you who believe! Come not to prayer when ya are drunk until
you understand what you say…” [4:43].
In Sura Bakara, Versus:219, Allah Subhana Ta’ala says that-
“…They ask thee concerning wine and gambling. Say: "In them is
great sin, and some profit, for men; but the sin is greater than the
Drinking of any intoxicating liquor is prohibited whether
more or less or whether fermented from grapes and dates or
from any other thing and is punishable whether Hadd or
Ta’zir. It is, however, necessary for the Hadd punishment that
the accused has taken wine or other introxicating liquor by
In Syariah criminal law, the drinker who has been proven for
an offence of drinking wine or intoxicating liquor, whether he
has become intoxicated or not will be punished with whipping
of not more than 80 stripes and not less than 40 stripes.
1.3 APOSTASY ()الردة
The Arabic equivalent for apostasy is Irtidad or Riddah. So,
Al-Riddah means rejection of the religion of Islam and
acceptance of other religion either through word of mouth or
through an action.
Example of Apostasy is- does not believe the existence of
Allah or Muhammad(p.b.u.h), rejection of obligatory of
Islam like prayer, zakat or bowing down to an idol or sun or
moon. Disbelieving of next life, not performing praying and
fast in Ramadan purposely is also considered as signs of
The Hadd punishment of Apostate is death after being given
him reasonable opportunity for repentance. The Holy Prophet
“ Kill The Person (Muslim) Who Abandonds His Religion”
(Ibn Qudamah Vol:10, Page:86)
Death punishment is common for
all apostates whether male or female
A woman apostate shall not be
punished with death but shall be
imprisoned till she repents or dies
He bases his opinion on the
hadith wherein the Prophet has
ordered not to kill women of Non
Muslims during battle with them
1.3 REBELLION ( البغاة )
Rebellion Literally means speech or behavior directed against the
peace of a state and in terms of Islamic law it means to turn against a
righteous Muslim ruler and disturb the peace of the community.
According to Ibn Abidin(Radd al-Muhtar V:III, Pg:426) Rebellion is a
Political Offence directed against the government or the ruler and not
against the Social Order.
In Sura An-Nisa, Versus:59, Allah Sub’hana Ta’ala Says-
“…O you who have believed, obey Allah and obey the Messenger and
those in authority among you….” [4:59] .
An important condition of Rebellion is that it takes place in a
revolution or in a state of civil war brought about for the achievement
of the goal. If no Revolution or State of Civil War exists when the
offence is committed, it does not amount to rebellion, but will be
treated as Habitual Offence.
According to some jurists, Hadd punishment of Rebellion is Death
during the Rebellion when the rebels start using force.
2.1 REASONS OF DECLARING SEVEN
ACTIVITIES AS GRIEVOUS OFFENCE.
As Allah Sub’hana Ta’ala states in Suratul An-Nisa, Versus:123 that-
“….Whoever works evil, will be required accordingly…”(123).
therefore, all the Islamic Scholars unanimously agree that the
enforcement of the Islamic criminal law is the foremost duty of an
Islamic State so as to protect the society from the evil effects of the
crimes and reform the offenders and evil-doers.
In other words, being an universal law, the Islamic Criminal Law
resolves about the following five fundamental points-
Protection of Religion,
Protection of Life,
Protection of the Sanctity of Family,
Protection of Property &
Protection of Sense.
2.2 THE AIM/GOALS OF EXECUTING
HUDUD PUNISHMENTS IN ISLAM
There are 3 aims/goals of punishment:
crimes in the
of society from
• To reform
and thus to
• The Holy Qur’an
both in this
world and in the
• Punishing the
manner as he
the wrongful act.
3.1 KELANTAN SYARIAH CRIMINAL
CODE (II) ENACTMENT 1999 (HUDUD
This enactment has 5 parts where the first part highlights the
provisions on the six hudud offences. A brief summary of these are
PART 1 of this enactment enlisted the 6 Hudud offences such as
theft, robbery, zina, qadhaf, drinking liquor and apostasy.
PART 2 deals with Qisas.
PART 3 provides about evidence i,.e number of witness in proving
hudud offences and its qualification.
PART 4 explains about the implementation of hudud punishment.
SECTION 5 defines theft
SECTION 6 provides theft
a) For the first offense cut off
his right hand;
b) for a second offense cutt
off his left leg
c) for third and subsequent
offense with imprisonment
for a term which the Court
thinks fit to make the
SECTION 7 : circumstances
where hudud law for theft
offence cannot be
implemented such as
where the stolen property
SECTION 10 defines zina
as sexual intercourse
between man and women
without legally married
and not under “wati’
section 11(1) : if the
offender is mohsan, the
punishment is stoning the
offender with stones of
medium size to death
SECTION 11(2) : if the
offender is ghairu mohsan
Presumption of Pregnancy as Proof of Zina:
SECTION 46 (2) provides in case of Zina, pregnancy or delivery of
a baby by an unmarried woman shall constitute evidence on her
guilty of Zina and therefore the hudud punishment shall be passed
on her unless she can prove to the contrary.
The presumption of Zina under this sec gives the burden@ shifted
the burden of proof on the pregnant women to prove that she is not
committed Zina because as a woman she might become pregnant
through rape or from intercourse while she is unconscious.
This Provision, however, has been criticized by different groups by
saying that it is injustice, cruel and barbaric.
Rebutting of their opinions:-
They are wrong in interpreting this provision as because to proof a
Zina, The prosecutor must produce 4 male witnesses who are the eye
witness when zina was committed
Anwarullah wrote that Imām Abū H-anīfah, Imām Shāfi`ī and Imām
Ah-mad opine that hadd of zinā cannot be implemented on
circumstantial evidence even if it reaches to the degree of certainty
like pregnancy of an unmarried woman.
The jurists, however, concur that any other circumstantial evidence
in zinā such as existence of semen on the body or clothes of an
accused man or woman and medical report shall be sufficient proof
for ta`zīr only.
This Kelantan Syariah Criminal Code (Ii) Enactment 1999 (Hudud
Law) was passed in November 1993 by the State Legislative Assembly of
However the Bill has become controversial and pending for approval by the
Federal Government though this enactment has been drafted and passed
about 20 years ago.
This was followed by Terengganu State Legislative Assembly which passed
the bill known as the Syariah Criminal Offences (Hudud and Qisas)
Enactment, Terengganu, 2002.
This enactment is a continuing effort from PAS in their struggle to establish
Malaysia as an Islamic state.
Likewise Kelantan, Terengganu also has the same enactment on Hudud Law.
IMPEDIMENTS IN IMPLEMENTING
HUDUD LAW IN KELANTAN AND
Section 2 of Syariah Courts
(Criminal Jurisdiction) Act
1965 limits the criminal
jurisdiction of Syariah Courts
The Syariah Courts shall NOT
have jurisdiction more than “3 5
6” Rule i.e. the offence punishable
must not exceed:-
6 strokes of
The Syariah Courts only have jurisdiction
over persons professing the religion of Islam
and in respect of matters enumerated in
List II of the State List of the Ninth
Schedule to the Federal Constitution.
Family Law, The
Islamic Law of
Article 75 of Federal Constitution bar enacting the Kelantan Syariah
Criminal Code (Ii) Enactment 1999 (Hudud Law), the Syariah Criminal
Offences (Hudud and Qisas) Enactment, Terengganu, 2002 and other
Shariah Enactments by providing that-
If any State law is inconsistent with a Federal law, the Federal law
shall prevail and the State law shall, to the extent of the inconsistency
Hudud law in Kelantan and Terengganu have become much too
politicized and controversial and there is a lack of consensus between
the Federal and State governments as to whether they will secure
justice under the present circumstances.
The Gap between Ideal and Reality and the Theory and
Practice of Sharia has grown so wide as to the modern world
in the form of Barbaric, Brutality that they refuse and
sometimes afraid to accept Sharia principles.
Ignorance of the Sharia Principles.
No such exemplifying country that successfully practiced
Islamic law .